I’ve added another council to the metaphorical transparency naughty step, so it’s time for Chester and Chester West Council – ‘We’ll make you pay for FOI requests’ – and Kirklees Council – ‘We’ll release it if the council leader says we can’ – to budge up a bit.
Take a seat Nottingham City Council, for imposing its own cap on the number of FOI requests an individual can make before they are being ‘vexatious.’
The serial FOI-er in question is a chap called Andy Platt, who runs a blog called NCClols, which basically casts a critical eye over goings on at the city council. He has history with the city council, and used to be work for them, but as we know, FOI requests are supposed to be treated on an ‘applicant blind’ basis.
Now, the ability for an authority to reject a request on the grounds that the request – and not the requester, a point made to me on Twitter last night – is vexatious has always struck me as bit of a grey area because it is so subjective.
ICO guidance suggests that the key to deciding whether an FOI request is vexatious is whether the request is likely to cause ‘unjustified distress, disruption or irritation.’
For a public body which is keen to hide something, then I suspect this is a bit of a god send. It’s suitably vague and what’s more, no public interest test needs to be applied to decide if they should still deal with the request anyway. In other words, authority decides you’re being vexatious, now sod off.
I imagine a lot of FOI requests cause irritation, but should a public authority be allowed to decide whether the irritation, distress or disruption potentially caused is unjustified?
It makes me think of a reluctant fat man placed on diet being asked whether he’s justified to eat cake on the grounds that he’s hungry. Of course, he’s going to say yes, if he thinks he can get away with it.
It also strikes me that such vagueness also potentially makes life difficult for FOI officers, the vast majority of who – in my experience at least – want to help get information out there. What do they do if an officer being asked to provide information comes back and says ‘I think this will cause unjustified distress if we release this?’
In its lengthy reply to Platt, NCC also says he can continue putting in FOI requests but warns that doing more than one in 60 days will probably lead to him being seen as vexatious because it will form a pattern. It cites ICO guidance on this – but the only reference I can find to 60 days is in relation to working out whether to group together same-issue FOIs for cost purposes.
Put simply, there isn’t a limit on how many FOI requests you can make, and it looks as though NCC is just trying to find a way to stop Platt from asking for information.
Should journalists be worried by this? I think so. Much like the council leader in Kirklees and the willingness of Chester to try and charge for FOI requests, this feels like a council interpreting rules in a way which suits them and creating its own legislation on the fly.
What’s more, NCC makes no bones about the fact its decision is based partly on how Platt uses the information: The blog’s name is part of their reason for refusal – presumably it’s the first time the use of LOL as shorthand for Laugh Out Loud has been part of a refusal – and also what they consider to be the ‘personal, derogatory comments directed at specific colleagues and councillors’ in the blog.
Interestingly, though, ICO guidance states:
“An important point is that it is the request, not the requester, that must be vexatious. You should not automatically refuse a request just because the individual has caused problems in the past. You must look at the request itself.”
Nottingham is doing that – seeing the name on the email and saying ‘oh no, not him.’
There is a solution to this: It’s the eradication of the grey areas involved in vexatious by the Government. Step one would be to insist all vexatious decisions are subject to a public interest test, which have to be published online.
It simply isn’t acceptable to have a get-out clause which allows a council to say ‘we don’t like what he does or way he does it so we’ll remove his right to ask for stuff.’ That’s exactly what Nottingham has done, with scant regard for what the guidance actually says.
The same council is effectively trying to place a cap on the number of requests someone can make – a very dangerous precedent which should alarm a lot of journalists.
I’ve not seen or heard of many cases of the vexatious refusal being used. I suspect it’s a cultural thing in councils. Those which like to keep secrets will use it to keep secrets.
Maybe that’s just coincidence.
Regardless of his background or previous requests, Platt is a member of the public. Tightening up FOI legislation around vexatious – insisting on a public interest test for a start – appears to be essential.